Judge rejects plea for third university trial

0 Comments | Oakland Tribune, Jun 4, 2005 | by Ian Hoffman, STAFF WRITER

A judge Friday turned down requests from the University of California and Lawrence Livermore nuclear-weapons lab for a third trial after twice losing million-dollar verdicts to a lab whistleblower.

Lab attorneys could not be reached to discuss the ruling. Attorneys for former Livermore lab computer technician Dee Kotla said they have little expectation the ruling will persuade the university to stop fighting the case, which began eight years ago when the lab fired Kotla ostensibly for $4.30 of personal phone calls and misuse of her office computer.

Two juries concluded the lab more likely fired Kotla because she was expected to be a central witness in a coworker's sexual harassment case against a senior lab scientist and the university. Kotla would have testified that she had reported a pattern of sexual harassment of her subordinates to senior Livermore managers but that they took no action with the lab scientist.

When Kotla appeared for a deposition in that case, a lab attorney called back to the lab on her cell phone, identified Kotla as a "hostile witness" and started internal investigations of her phone and computer records.

A jury in 2002 awarded $1 million to Kotla. A judge ordered the university to pay an equal amount in her attorneys' fees. The lab and the university, which operates Livermore lab for the U.S. Department of Energy, appealed and won a new trial. A second Alameda County jury this spring awarded $2.2 million to Kotla. Her attorneys' fees and the lab's legal fees easily could top $4 million.

According to the General Accountability Office, the investigative arm of Congress, the U.S. Energy Department in recent years has reimbursed more than 98 percent of its contractors' legal fees, adverse judgments and settlements, including those of the University of California. With at least $6 million in costs to taxpayers and rising, the Kotla case would rank among the most expensive such cases involving a single plaintiff.

A Massachusetts congressman seized on the Kotla case in arguing that federal contractors were using the U.S. Treasury as a limitless war chest for legal battles against workers who report waste, fraud or other wrongdoing.

Rep. Ed Markey persuaded colleagues in the House to write a prohibition into the 2005 Energy Policy Act, requiring Energy Department contractors to pay their own legal fees when they persist in fighting losing cases.

Markey urged the University of California after the second jury verdict to pay Kotla and end the case.

The lab and the university asked the judge to discard the second verdict as unmerited and grant a third trial.

On Friday, Alameda County Superior Court Judge Ronnie Sabraw rejected those requests.

"I've never seen anything like this. It just goes on and on," said one Kotla attorney, Jan Nielsen.

"You don't have anybody really taking the horns on this thing and saying let's end this."

Contact Ian Hoffman at ihoffman@angnewspapers.com.